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Four Key Topics
- 1. Found property
- 2. Gifts
- 3. Bailments
- 4. Common carriers
- 1. Abandoned Property
- 2. Lost Property
- 3. Mislaid Property
Abandoned Property - Test
- 1. Is it abandoned?
- owner has voluntarily given up possession with the intent to give up title and control
- 2. If it is, has someone acquired rights in it?
- -finder acquires rights if he has possession with the intent to assert title and control
Lost & Mislaid Property
Form of Question
- two person fighting over title
- 1. The person who found the property, or finder
- 2. The person on whose land the chattel was found, the land owner or occupier
- But the true owner will not be present
- Found property where the owner took no voluntary affirmative act in placing the property where it is found; that is, accidental & involuntaryFinder wins!
- Found property where the owner has taken some voluntary affirmative act in placing property
- Owner/Occupier wins!
Exceptions to rule for lost property
- 1. if the finder of lost property is trespasser, the owner/occupier of premises will prevail
- 2. the master prevails over the servant who finds
- 3. (most likely) if lost property is found in a highly private locus (home/office), owner/occupier will prevail over finder
- 1. gifts inter-vivos
- 2. gifts causa mortis (in contemplation of death)
- 1. donative intent
- 2. a valid delivery (most important)
- 3. a valid acceptance
- 1. donative intent is much easier to find when the donor and donee are closely related2. donative intent means the intent to pass title now (not just possession)
- -Acceptance is implied by silence.
- -The only way there is no acceptance is if you have explicit rejection by words or deeds
- 1. Handing something to someone
- 2. donee is already in possession when gift is attempted
- 3. donor hands over something representative of the object of the gift
- 1. Donor gives check to donee; delivery at time of cashing
- 2. Donor hands donee a check made out to donor by 3d party; valid delivery
- 3. Donor hands donee a stock certificate; valid delivery
- 4. Donor uses a middle person to give gift
- -donee's agent = valid delivery when given to agent
- -donor's agent = valid delivery when given to donee
- -when in doubt, construe as donor's agent (unless donee is a minor)
Gifts Causa Mortis
- 1. Nature of the peril: No gift causa mortis will be allowed unless the donor making the gift is facing a great peril
- -To have a valid gift causa mortis the peril the donor faces must be a fair degree of certainty or likelihood of death that is imminent and likely to occur2. revocation
- -Three ways:
- -1. donor can simply revoke any time
- -2. donee predeceases donor
- -3. donor recovers
Is it a bailment?
- -when the alleged bailee has taken over custody/possession of a chattel with intent to serve as a bailee
- --1. safe deposits boxes are generally regarded as a bailment (regardless of knowledge of contents)
- --2. parking lots/garagees: if gave keys, bailed; if keeps keys, not bailed
If bailment, what is the liability of the bailee if the chattel is damaged, destroyed or missing?
- Standard of care:
- 1. for sole benefit of bailor = bailee liable for gross negligence
- 2. for sole benefit of bailee = bailee liable for slight negligence
- 3. mutual benefit situation = bailee liable for ordinary care
- Modern Trend is to apply ordinary care in all bailments
- Strict Liability
- 1. unauthorized use
- 2. misdelivery (even if forged instrument)
- exception: misdelivery of a vehicle in a parking lot to someone who shows up with a forged claim check bring NO strict liability
- Exculpatory clauses:
- -bailee can limit only for bailee's ordinary negligence (effective notice)
Items on consignment are bailed. Bailed items can't be included in a bankruptcy estate of bailee.
- Definition: one who undertakes for hire to transport persons or goods from place to place
- 1. must hold out to perform the service to all who apply
- 2. the carriage must be for hire
- 3. the service must be for carriage (transport)
- Common carrier is considered an insurer of the goods given by the shipper and is liable for any damage or loss.
- 1. where the goods are damaged or destroyed by an act of nature
- 2. where the goods are damaged or destroyed by faulty packaging by the shipper
- 3. where the goods are damaged or destroyed because the goods are perishable and nature took its course